# Akshay Kumar v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 1255
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-09
- **Case number:** Writ-A No. 11878 of 2023
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akshay-kumar-v-state-of-u-p-ors-49321
- **Pages:** 4

## Headnote

A. Service Law - UP State District Court
Service Rules, 2013
-
Rule 7(ii) -
Disciplinary
enquiry
report
-
Disagreement of disciplinary authority
from the finding of enquiry officer - No
opportunity of hearing was given - Effect
- Remittal of the matter to the Enquiry
Officer to submit report afresh - Validity
challenged - Held, as the law is well laid
down in several decisions of the Court
that no delinquent employee should stand
prejudiced
by
any
action
of
the
disciplinary
authority,
for
want
opportunity of hearing, once the matter is
remitted to the Enquiry Officer to submit
report afresh may be on certain specific
points as have come to be mentioned by
disciplinary authority in its order, it goes
without
saying
that
the
delinquent
employee shall be afforded an opportunity
by the Enquiry Officer - High Court
directed the enquiry officer to provide
1256 INDIAN LAW REPORTS ALLAHABAD SERIES
opportunity of hearing to the petitioner.
(Para 9 and 10)

Writ petition disposed of. (E-1)

List of Cases cited:

## Text

10 All. Akshay Kumar Vs. State of U.P. & Ors.
1255
on the ground of his conviction in relation
to a crime but nowhere in the said order
conduct of the petitioner which has led to
his conviction has been considered and
therefore, the order dated 26.12.2014 does
not come in the ambit of proviso appended
to Article 311 (2) of the Constitution of
India. The District Basic Education Officer,
Kanpur Dehat either should have conducted
inquiry by associating the petitioner and
affording him opportunity of hearing and
only thereafter could have passed the order
thereby dismissing petitioner from service
or if the disciplinary authority wanted to
pass order in terms of proviso appended to
Article 311 (2) of the Constitution of India
thereby dismissing the petitioner from
service without holding inquiry, then he
could have done so only by considering the
conduct which led to conviction of the
petitioner whereas the District Basic
Education Officer, Kanpur Dehat while
passing order dated 26.12.2014 thereby
dismissing the petitioner from service has
not considered the conduct of the petitioner
which led to his conviction at all, therefore,
the order dated 26.12.2014 impugned in the
present writ petition cannot sustain in the
eye of law.

23 . In view of the aforesaid reasons,
this writ petition is allowed. The order
dated 26.12.2014 passed by the District
Basic Education Officer, Kanpur Dehat is
quashed. The matter is remanded to the
District Basic Education Officer, Kanpur
Dehat to pass a fresh order as per the
provisions made in Article 311 (2) of the
Constitution of India, within two month
from the date of presentation of certified
copy of this order.

24. It is further provided that
reinstatement of the petitioner and his
entitlement for service benefits shall
depend on the outcome of the fresh order to
be passed by the District Basic Education
Officer, Kanpur Dehat.

----------
(2023) 10 ILRA 1255
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 11878 of 2023

Akshay Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Kumar Sharma, Sri V.K. Singh (Sr.
Adv.)

Counsel for the Respondents:
C.S.C., Sri Ashish Mishra, Sri Rahul Agrawal

A. Service Law - UP State District Court
Service Rules, 2013
-
Rule 7(ii) -
Disciplinary
enquiry
report
-
Disagreement of disciplinary authority
from the finding of enquiry officer - No
opportunity of hearing was given - Effect
- Remittal of the matter to the Enquiry
Officer to submit report afresh - Validity
challenged - Held, as the law is well laid
down in several decisions of the Court
that no delinquent employee should stand
prejudiced
by
any
action
of
the
disciplinary
authority,
for
want
opportunity of hearing, once the matter is
remitted to the Enquiry Officer to submit
report afresh may be on certain specific
points as have come to be mentioned by
disciplinary authority in its order, it goes
without
saying
that
the
delinquent
employee shall be afforded an opportunity
by the Enquiry Officer - High Court
directed the enquiry officer to provide
1256 INDIAN LAW REPORTS ALLAHABAD SERIES
opportunity of hearing to the petitioner.
(Para 9 and 10)

Writ petition disposed of. (E-1)

List of Cases cited:

1. Punjab National Bank Vs Kunj Behari Misra;
JT 1998 (5) SC 548

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri V.K. Singh, learned
Senior Advocate assisted by Sri Ajay
Kumar Sharma, learned counsel for the
petitioner and Ms. Akashi Agrawal, learned
Advocate holding brief of Sri Rahul
Agrawal,
learned
counsel
for
the
respondent no.2.

2. The petitioner who has been
subjected to disciplinary proceedings under
the U.P. State District Court Service Rules,
2013, is aggrieved by the order dated
25.04.2023 passed by the disciplinary
authority, namely, the District Judge,
Saharanpur, whereby he has remitted the
matter to the Enquiry Officer to clarify on
certain points by giving a fresh report.

3. Learned Senior Advocate has
argued that this amounts to an act of
disagreement by the disciplinary authority
in matter of finding returned by the enquiry
officer and, therefore, he needed to be
afforded an opportunity of hearing by the
disciplinary authority in the first instance.
He submits that in matter of enquiry if
supportive findings have come to be
referred in favour of the delinquent
employee,
any
disagreement
by
the
disciplinary
authority
would
naturally
amount to negating the findings of the
Enquiry
Officer
and,
therefore,
the
delinquent employee is required to be
heard.

4. He has placed reliance on the
judgment of the Supreme Court in the case
of Punjab National Bank v. Kunj Behari
Misra:JT 1998 (5) SC 548. He has referred
to paragraph nos.7 and 19 of the judgment.
He submits further that the judgment would
be applicable in the present case as the
provisions that were referred to in the
judgment in that case and the provisions as
contained under Rule 7 (ii) of the Service
Rules, 2013 are in pari materia. It is argued
that there also the provision was to the
effect that if the authority disagreed with
the findings returned by the Enquiry
Officer and records its own finding on such
charge, if the evidence on record is
sufficient for purpose. The provisions as
contained under Rule 7 (ii) also provide for
similar provisions that the disciplinary
authority shall, if disagrees with the finding
of the Enquiry Officer on giving charge,
records its findings for the reasons to be
recorded.

5. Learned Senior Advocate has
argued that this provision has been
interpreted vide paragraph 19 of the
judgment that runs as under:

"The result of the aforesaid
discussion would be that the principles of
natural justice have to be read into
Regulation 7(2). As a result thereof
whenever
the
disciplinary
authority
disagrees with the inquiry authority on any
article of charge then before it records its
own findings on such charge, it must
record its tentative reasons for such
disagreement and give to the delinquent
officer an opportunity to represent before it
records its findings. The report of the
inquiry officer containing its findings will
have to be conveyed and the delinquent
officer will have an opportunity to
persuade the disciplinary authority to
10 All. Akshay Kumar Vs. State of U.P. & Ors.
1257
accept the favorable conclusion of the
inquiry officer. The principles of natural
justice, as we have already observed,
require the authority, which has to take a
final decision and can impose a penalty, to
give an opportunity to the officer charged
of misconduct to file a representation
before the disciplinary authority records its
findings on the charges framed against the
officer."

6.

Learned
counsel
for
the
respondents has argued that while laying
down ratio in the judgment by the Supreme
Court, Supreme Court has very specifically
referred to Rule 7(ii) and not Rule 7 (i).

7. It is argued that as far as Rule 7 (ii)
is
concerned,
that
empowers
the
disciplinary authority to return a finding of
its own showing disagreement to the
findings of the Enquiry Officer on the basis
of evidence already available on record.
This enabling provision as contained
under Rule 7 (ii) of the Rules which is
in pari materia with Rule 7 (ii) of
Rules, 2013 involved in the present
case,
meant
that
the
disciplinary
authority could have proceeded to hold
the petitioner guilty of the charges on
the basis of evidence available on
record. It is in that context that
Supreme Court interpreted that the
provisions would certainly be including
in it and inherently so the principles of
natural justice. It is in that reference
that the Supreme Court observed that
the
delinquent
employee
would
certainly stand prejudiced if showing
disagreement with the findings returned
in favour of the delinquent employee by
the
Enquiry
Officer,
disciplinary
authority still proceeds to hold such
delinquent employee guilty of the
charges and resultantly proceeds to punish
him.

8. Having heard learned counsel for
the parties, their arguments raised across
the bar, having perused the records as well
as the relevant rules and judgment cited by
learned Senior Advocate, I find that as per
Rule 7 (i) of the Rules that has been
referred to by their Lordships in the case of
Punjab National Bank (Supra) provided for
a disciplinary authority to refer the enquiry
back to the enquiry officer to hold enquiry
afresh and then the authority shall be
holding the enquiry accordingly as per
Regulation 6, whereas under Rule 7 (ii) it
empowers the disciplinary authority to
disagree with the findings of the Enquiry
Officer and proceed in accordance with law
to hold the petitioner guilty of the charges
and resultant punishment.

9. The two provisions apparently
seem to be quite distinguishable and while
as per Rule 7 (i) is concerned, it is an
enabling
provision
for
disciplinary
authority to refer the matter back to the
enquiry officer. There is no such provision
as contained under Rule 23 (vii) but as the
law is well laid down in several decisions
of the Court that no delinquent employee
should stand prejudiced by any action of
the
disciplinary
authority,
for
want
opportunity of hearing, in my considered
view, once the matter is remitted to the
Enquiry Officer to submit report afresh
may be on certain specific points as have
come to be mentioned by disciplinary
authority in its order, it goes without saying
that the delinquent employee shall be
afforded an opportunity by the Enquiry
Officer.

11. In the circumstances, therefore, I
decline to interfere with the order passed by
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
the disciplinary authority in remitting the
matter to the Enquiry Officer requiring him
to submit the report afresh on certain
points, I hereby provide that before the
Enquiry Officer proceeds to record any
fresh findings upon the points that have
been referred to it by the disciplinary
authority under the order impugned, it shall
as
of
necessity
provide
reasonable
opportunity of hearing to the petitioner and
it is thereafter only any fresh report shall be
submitted to the disciplinary authority.

12. With the aforesaid observations
and directions, this petition stands disposed
of.

----------
(2023) 10 ILRA 1258
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.10.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Govt. Appeal Defective No. 6 of 2023

State of U.P. ...Appellant
Versus
Ravishankar Kurmi ...Respondent

Counsel for the Appellant:
G.A.

Counsel for the Respondents:
 --

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section
378-U.P.
Gangsters
and Anti-Social Activities (Prevention) Act,
1986-Section 3-Challenge to-acquittal-In
order to prove its case, the prosecution
has examined PW-1, PW-2 and PW-3-the
learned trial court found that all the
witnesses
are
formal
witnesses-No
independent eye witness of the alleged
offence-the alleged recovery of tool have
been made from open fields which did not
inspire confidence of the trial court-the
prosecution also failed to prove the gang
chart-Hence, the learned trial court rightly
recorded the finding of acquittal of the
accused.(Para 1 to 27)

The appeal is dismissed. (E-6)

List of Cases Cited:

1. Ramesh & ors. Vs St. of Har. (2017) 1 SCC
529

2. Guru Dutt Pathak Vs St. of U.P. (2021) 6 SCC
116

3. Sadhu Saran Singh Vs St. of U.P. & ors.
(2016) 4 SCC 357
(Delivered by Hon'ble Hon'ble Shamim
Ahmed, J.)

Criminal Misc. Delay Condonation
Application No.1 of 2023:

1. This is an application under Section
5 of Limitation Act seeking condonation of
delay in preferring the instant appeal.

2. Heard Sri S.P. Tiwari, Additional
Government
Advocate-I
for
the
applicant/State and also perused the record.

3. Office report reveals that there is a
delay of fifteen days in preferring the
instant appeal.

4.

Having
heard
the
learned
Additional
Government
Advocate-I
representing the State/applicant and upon
perusal
of
averments
made
in
the
application seeking condonation of delay,
this Court is satisfied that the delay has
sufficiently been explained.

5. Accordingly, the application for
condonation of delay is allowed and the